| Complaint Case No. CC/9/2014 |
| | | | 1. B.Anilkumar, | | S/o:Balakrishnan, No:20A,Umamaheswaran Nagar, Rammanathapuram, Reddypalayam Road, | | Thanjavur | | TamilNadu |
| ...........Complainant(s) | |
| Versus | | 1. D.J.Selvaganapathi | | S/o.Durairajan, Main Road, Vaduvoor Pudukkottai Village Vaduvoor Post, Mannarkudi(tk) | | Thiruvarur | | Tamil Nadu |
| ............Opp.Party(s) |
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| ORDER | This complaint having come up for final hearing before us on 04.03.2015 on perusal of the material records and on hearing the arguments of Thiru.K.Parthiban, the counsel for the complainant and Thiru. N.Selvaraj, the counsel for the opposite party and subsequently remaining ex-party and having stood before us for consideration, till this day the Forum passed the following By President, Thiru..P.G.Rajagopal, B.A.B.L., This complaint is filed by the complainant u/s 12 of the Consumer Protection Act 1986. 2) The gist of the complaint filed by the complainant is that the complainant and the opposite party entered into an agreement for construction of a portion of the first floor building of the complainant at an extent of 582 sq feet at the estimation of the cost of Rs. 10,00,000/- by the opposite party who received Rs. 50,000/- towards advance on 15.09.2012 and subsequently Rs. 1,35,000/- on 03.11.2012 and on various dates of Rs. 25,000/- and had received the agreed amount except a sum of Rs. 1,75,000/- but he did his construction workup to the month of July 2013 and subsequently he stopped the construction work when questioned by the complainant , the opposite party told him that owing to his illness he was not able to do the balance of work and on holding compromise talk through mediators the opposite party agreed to return a sum of Rs. 2,50,000/- towards balance of the construction work which was to be done by the complainant him self through another workers and accordingly the complainant started the balance of construction work through other laborers during the month of November 2013. But without returning the agreed amount of Rs.2,50,000/- the opposite party preferred a false complaint before the Medical College Police Station, Thanjavur and after conducting enquiry and after verification the police has warned and directed the opposite party to return the said amount to the complainant.As the opposite party did not comply with the construction work the complainant has issued a notice through his counsel on 09.12.2013 for which the opposite party sent a reply notice through his counsel on 31.12.2013 with false allegation.The complainant therefore prays for an order by this Forum to direct the opposite party to pay a sum of Rs.2,50,000/- which has already been received by him from the complainant towards the estimation of the cost of construction, and to pay Rs.25,000/- towards compensation for his mental agony, pain and suffering and to pay a sum of Rs. 5000/- towards cost of the proceedings and to grant such other reliefs as this Forum would deem fit. 3) The opposite party though appeared in this proceedings through his counsel has failed to file his written version despite several adjournments granted in that regard and finally he was set ex-party on 06.10.2014. - The complainant has filed his proof affidavit reiterating all the averments made in his complaint and filed two documents which are marked as Ex.A.1 and Ex.A.8. Written arguments is also submitted by the complainant
5) The points for Determination are: 1) Whether there is deficiency of service on the part of the opposite party? 2) Whether the Complainant is entitled to any relief? If so to what relief? - POINT NO.1 : In the reply notice given by the opposite party through his counsel at the paragraph No.1 he has admitted that the complainant is the owner of the property on which he agreed to construct a portion of the first floor of the complainant’s building of the said property. Ex.A.1 is the abstract of the estimate with the details of the estimate of the cost of the construction which is estimated at Rs. 10,00,000/-. Ex.A.2 is the note book showing the various payments made by the complainant to the opposite party. Ex.A.3 is the Xerox copy of the cheque issued by the complainant for Rs. 1,75,000/- dated 19.07.2013 drawn on the Corporation Bank, Thanjavur in favour of the complainant. Ex.A.4 is the statement of account of the complainant maintained by the Corporation Bank in which the said sum of Rs. 1,75,000/- is debited in his account. Ex.A.5 is the series of photograph showing the construction of the building. Ex.A.6 is the office copy of the notice issued by the complainant’s counsel to the opposite party. Ex.A.7 is the postal acknowledgement card of the opposite party and Ex.A.8 is the reply notice given by the opposite party through his counsel.
Even though the opposite party denied the allegation of the complainant in his reply notice Ex.A.8 and has also stated that he constructed 850 sq.feet including of first and second floor additional works of 418 sq.feet and demolition work of 1st floor and there by the complainant alone is liable to pay a sum of Rs. 3,31,879/- as agreed by the complainant and has demanded for the return of the said balance amount of Rs. 3,31,879/- from the complainant.He has not chosen to file his written version in this proceedings.In spite of several adjournments granted for filing his written version, he has not chosen to file his objections in writing and consequently he had been set ex-party on 06.10.2014.The very failure on the part of the opposite party to file his written version and is remaining ex-party in this proceedings gives an inference that he has no valid defense that could be proved by him successfully in this proceedings. In other words the complainant’s allegations in that complaint and proved by his proof affidavit as well as the Ex.1 to Ex.A.8.Therefore, this Forum has no hesitation to hold that there is deficiency of service on the part of the opposite party with respect to the construction of the portion of the first floor of the building of the complainant as agreed by him. POINT No.2: In the result, the complaint is allowed in part. The opposite party is directed to pay a sum of Rs. 2,50,000/- (Rupees two lakhs and fifty thousand only) which has been already received by him from the complainant towards the estimation of the cost of the construction, to pay a sum of Rs.10,000/- (Rupees ten thousand only) towards compensation for the mental agony and hardship suffered by the complainant and to pay a sum of 2000/- (Rupees two thousand only) towards cost of the litigation. The opposite party is directed to pay the said sum of Rs.2,50,000/- and the compensation amount of Rs. 10,000/- to the complainant within 30 days from the date of this order, failing which the said amount shall carry an interest at the rate of 12% per annum from the date of this order till date o fits payment. This order was dictated by me to the Steno-Typist, transcribed by her and corrected and pronounced by me on this 18th day of March 2015. MEMBER -I PRESIDENT List of documents on the side of the complainant:- MEMBER -I PRESIDENT List of documents on the side of the complainant:- Exhibits | Date | Description | Ex.A.1 | 15.09.2012 | Estimation Agreement. | Ex.A.2 | 15.09.2012 | Note Book maintained by the complainant. | Ex.A.3 | 19.07.2013 | Xerox copy of cheque issued by the complainant in favour of the opposite party. | Ex.A.4 | 15.07.2013 to 20.07.13 | Xerox copy of Bank account statement | Ex.A.5 | … | Photos (6) | Ex.A.6 | 09.12.2013 | Office copy of the legal notice issued by the complainant through his counsel to the opposite party. | Ex.A.7 | 11.12.2013 | Postal acknowledgement card of the opposite party. | Ex.A.8 | 31.12.2013 | Reply notice issued by the opposite party through his counsel to the complainant’s counsel. |
List of documents on the side of the Opposite party : NIL MEMBER -I PRESIDENT
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